The University of Memphis Cecil C. Humphreys School of Law recently was named the 5th best value law school in the nation by PreLaw magazine. To be considered for the award, a public university had to have a tuition lower than $25,000, a bar passage rate higher than the state average and an employment rate of 85 percent or better, the Memphis Daily News reports. See the listings:

TODAY'S OPINIONSClick on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then
open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to
download the original document. If not, you may need to right-click on the URL to get the option to save the file
to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view
and save a plain-text version of the opinion.

THE ESTATE OF ELDORA BURKES, by and through its Administrator, C.T.A., CALVIN BURKES v. ST. PETER VILLA, INC., d/b/a ST. PETER VILLA NURSING HOME

Court: TCA

Attorneys:

M. Chad Trammel and S. Drake Martin, Jackson, Tennessee, and Brian G. Brooks, Greenbrier, Arkansas, for appellant, The Estate of Eldora Burkes, by and through its Administrator, C.T.A., Calvin Burkes.

This appeal involves an award of discretionary costs after a voluntary dismissal. The plaintiff estate filed a lawsuit against the defendant nursing home, alleging abuse and neglect of the plaintiff's decedent. The defendant nursing home filed a motion for summary judgment and a motion to
exclude the plaintiff's expert. The motion for summary judgment was denied, but the motion to exclude the plaintiff's expert was granted. The plaintiff then filed a notice of voluntary nonsuit. Consequently, the trial court entered an order of voluntary dismissal without prejudice. After entry of this order, the defendant nursing home filed a motion for discretionary costs, pursuant to Rule 54.04(2) of the Tennessee Rules of Civil Procedure. The trial court granted the motion, and entered an order assessing the costs against the plaintiff estate. The plaintiff estate now appeals, arguing that the defendant nursing home was not entitled to an award of discretionary costs because it obtained no relief on the merits of the case and therefore was not a "prevailing party." We affirm, finding that
Rule 54.04(2) expressly authorizes the trial court, in its discretion, to award discretionary costs to a defendant in a lawsuit that is voluntarily dismissed without prejudice.

This is a divorce case involving a marriage of almost thirty years between Kimberly L. Payne ("Wife") and Michael R. Payne ("Husband"). The parties have two adult children. Wife filed a complaint for divorce based on Husband's alleged inappropriate marital conduct. Husband filed a
counterclaim also seeking a divorce, but claiming it was Wife who had engaged in inappropriate marital conduct. Following a trial, the Trial Court divided the marital property and awarded Wife alimony in futuro of $1,800 per month. Husband appeals claiming that, pursuant to Tenn. Code Ann. section 36-5-121(f)(2), the alimony award was improper because the Trial Court failed to take into account
that Wife was living with a new boyfriend who, Husband claims, was providing financial support to Wife. Husband also challenges the marital property distribution. We affirm.

In this divorce action, the wife was awarded the divorce and periodic alimony. The Trial Judge also divided the marital property. The husband appealed. We affirm the Trial Court's Judgment, as modified.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich and Nicole Germain, Assistant
District Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

A Shelby County jury found the Appellant, Robert Austin, guilty of two counts of first degree premeditated murder and one count of criminal attempt to commit first degree premeditated murder. Following the penalty phase of the trial, the jury sentenced Austin to two terms of life imprisonment without parole. At a subsequent sentencing hearing, the trial court sentenced Austin to forty years,
as a Range II offender, for the attempted first degree murder and ordered that all of his sentences run
consecutively. On appeal, Austin presents the following issues: (1) whether the trial court erred in disallowing expert testimony regarding Austin's capacity to form the requisite intent for intentional or knowing offenses; (2) whether the evidence is sufficient to support the convictions; and (3) whether the trial court erred in ordering consecutive sentencing. With regard to issue (1), we conclude that the trial court erred in excluding expert testimony; however, the error was harmless. The remaining issues are without merit. Accordingly, the judgments of conviction and the imposition of consecutive sentences are affirmed.

James E. Lanier, District Public Defender and Patrick McGill, Assistant District Public Defender, for the appellant, Randall Carver.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Randall Carver, filed a pro se petition for writ of error coram nobis and/or habeas corpus relief. The trial court treated the petition as one for post-conviction and summarily dismissed the petition. On appeal, this Court affirmed the post-conviction court's dismissal of the petition. See Randall Carver v. State, No. M2002-02891-CCA-R3-CO, 2003 WL 21145572 (Tenn. Crim. App., at Nashville, May 16, 2003). Petitioner subsequently filed a petition for writ of habeas corpus, alleging numerous claims for relief. The trial court denied the petition without a hearing,
determining that because Petitioner failed to produce material to the court for consideration and that
because Petitioner was being held by the State of Kentucky on Kentucky charges all of Petitioner's issues were moot. Petitioner appealed. On appeal, this Court, without reaching the merits of Petitioner's argument, remanded the case for determination of "why the counsel who represented the petitioner in the lower court is not representing the petitioner on appeal." See Randall Carver v. Tony Parker, Warden, No. W2005-00522-CCA-R3-HC, 2006 WL 140408, at *2 (Tenn. Crim. App., at Jackson, Jan. 18, 2006). On remand, the trial court learned that Petitioner had been granted parole on his underlying sentences in the State of Tennessee, waived extradition and was transferred to the custody of the State of Kentucky. Subsequently, the trial court entered an order denying the petition for writ of habeas corpus. Petitioner filed a timely notice of appeal. He argues that he is entitled to request habeas corpus relief while being incarcerated in Kentucky and that this Court should transfer the petition to the court in which he was originally convicted. Because an out-of-state resident may seek habeas corpus relief in Tennessee from a Tennessee conviction, see State v. Church, 987 S.W.2d 855, 857-58 (Tenn. Crim. App. 1998), and the supreme court recently determined in Joseph Faulkner a/k/a Jerry Faulkner v. State, ___ S.W.3d ___, 2007 WL 1226831, at *6 (Tenn. Apr. 27, 2007), that a "prisoner serving concurrent state and federal sentences in a federal correctional
institution may challenge his state convictions through the use of the state writ of habeas corpus," we determine that the trial court did not lose jurisdiction to make a determination on the merits of Petitioner's claim by virtue of Petitioner's parole from his Tennessee convictions and incarceration in Kentucky. Therefore, we reverse and remand the judgment of the trial court for further
proceedings consistent with this opinion.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Michael Dunavant, District Attorney General; and Joe Van Dyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Jimmie Lee Hoyle, appeals the summary dismissal of his petition for post-conviction relief, arguing that it was error for the post-conviction court to deny relief without holding an evidentiary hearing, allowing him to amend his petition, or appointing counsel. Following our
review, we conclude that the Petitioner stated a colorable claim in his petition. Accordingly, we reverse the post-conviction court's order of dismissal and remand for further proceedings.

Convicted murderer Daryl Keith Holton was pronounced dead at 1:25 a.m. this morning -- the first death row inmate electrocuted in Tennessee since 1960. Late last night, the Supreme Court considered and rejected a last-minute petition by concerned attorneys calling on the court to halt the execution and rule on the constitutionality of electrocution as a means of capital punishment. Download the
petition,
the state's response and the court's order

Anna Calixto was in court last week seeking an order of protection against her husband but witnesses say Blount County Circuit Judge W. Dale Young dismissed the case out of hand and told her to go back to Nicaragua. Calixto says she has a temporary worker permit and two children who are U.S. citizens but that the judge would not listen. Complicating the situation is the fact that no clerk or court reporter was present during the hearing and there is no transcript, recording or documentation of the proceedings.

At least 23 well-known law firms have joined a new membership program offered by the Project for Attorney Retention (PAR), an initiative of the Center for WorkLife Law at the University of California's Hastings College of the Law. The project promotes work-life balance and the advancement of women in the profession as means of helping law firms avoid attorney attrition.

A three-member panel of the state Court of Criminal Appeals, Judge Jerry Smith presiding, will sit at 6 p.m. Sept. 18 in the courtroom at the Nashville School of Law. Judges David G. Hayes and Thomas T. Woodall also will sit on the panel.

Although they have not yet graduated from law school, some students say they are disillusioned with law firm culture. Worried about long days, unrewarding work and lack of diversity, a group from Stanford Law School formed "Law Students Building a Better Legal Profession." Now a national coalition, the group hopes to change the way firms do business.

University of Tennessee College of Law professor Penny White recently finished an assignment as faculty member for the National Judicial College (NJC), where she lectured on the fair trial of capital cases. She also will be a contributing author to a state capital case manual being published by the NJC. In other news, White has been named co-chair of the ABA Litigation Section's Task Force on Judicial Independence. The group will address unfair attacks on judges and educate the public about the importance of an independent judiciary, the college reports.

Nashville puts another lawyer in mayor's office

Nashville will continue to be led by a lawyer after Karl Dean won election as mayor yesterday. Dean, a 1981 graduate of Vanderbilt University's Law School and former Metro Nashville Law Director, will replace Bill Purcell, a 1979 Vanderbilt law grad.

Legislative News

News source calls for lawmaker's resignation

TriCities.com is calling for state Rep. Rob Briley, D-Nashville, to resign from office. In an editorial, the web site says that Briley can no longer be effective as a lawmaker and that it is not in the state's best interest for him to continue serving as chair of the House Judiciary Committee.

The state Registry of Election Finance has asked state Sen. Jerry Cooper to appear before the panel in November and answer questions about allegations he transferred nearly $100,000 in campaign funds to a personal account. The alleged transfer was revealed during testimony at Cooper's bank and mail fraud trial in June. A complaint based on that testimony was filed by the Tennessee Center for Policy Research, reports the Tennessean.

Upcoming

Continuity of government committee to meet

The Governor's Advisory Committee on the Transfer of Chief Executive Powers will meet at 1 p.m. Thursday on the ground floor of the state capitol. This will be the fourth meeting of the committee, which is chaired by state Attorney General Robert E. Cooper Jr. The panel's mission is to examine ways to amend the Tennessee constitution to provide for transfer of the governor's executive powers when he is unable to exercise those powers or discharge the duties of his office.

TBA Member Services

TBA, Bank of America team up for no-fee credit card

The TBA Rewards American Express Card from Bank of America places a new world of rewards, privileges and service at your command -- with no annual fee.